You might think that if your employer is paying weekly benefits and has paid for medical care, you are not likely to have any significant disputes in your work injury case. As the case I am about to discuss shows, however, challenges from the insurance company may be right around the corner.
The case I want to highlight is not one of my cases. The decision in this case is part of the public record in that it is published on the web site of the Georgia State Board of Workers’ Compensation. I bring this case to your attention for several reasons:
- first, I want you to see how a State Board judge analyzes evidence
- second, there are certain elements of this case that are not discussed in the decision, but we can assume they are there because the insurance company did not raise the issue and the judge did not mention the issue. We’ll read between the lines to reveal these issues.
- third, this is a case that shows how insurance companies operate to cut off the benefits of a deserving claimant and to force a below market settlement.
The case I am discussing was decided in 2013 in south Georgia. Because State Board files are confidential, neither the name of the claimant nor the name of the employer is disclosed. Here is a link to the written decision.
The employee is a female who worked as the manager of a restaurant. In December, 2006 the employee hurt herself and developed neck pain which radiated into both hands and lower back pain that radiated into both legs. The employer accepted the claim and began paying her TTD (weekly wage) benefits. The employer also paid for medical care that include surgery on her cervical spine and surgery on her lumbar spine.
The surgeries did not relieve the symptoms, and employee was referred to a long term pain management physician. Among the treatments tried by the pain management physician is something called radiofrequency ablation which involves the heating of nerve tissue. When nerve tissue is heated, pain signals from that area are diminished, thereby reducing the sensation of pain.
The employee reported some improvement with the radiofrequency ablation and in 2012 the pain management doctor scheduled the employee for an ongoing series of these radiofrequency treatments. The pain management doctor also recommended a spinal cord stimulator trial. Both radiofrequency ablation and spinal stimulators work by blocking nerve signals and are a common practice in long term pain management.
The insurance company filed paperwork to deny responsibility for payment for the radiofrequency ablations and the spinal stimulation trial. In paperwork filed with the State Board they asserted that the employee’s pain was not the result of her on the job injury but was the result of degenerative (aging) changes over time and was the result of her obesity (she was 5’4″ and 243 lbs.). The employee noted in deposition that she was not overweight at the time of her injury but gained 70 lbs. while undergoing steroid treatment prior to surgery.
Let’s stop right here and analyze what has happened here. This employee suffered an injury on the job – this fact is not in issue. She required two different surgeries – one a neck surgery and the second a lower back surgery. The insurance company paid for both of these surgeries. They had also been paying her weekly wage benefits for almost 6 years. The employee’s obesity is a direct result of approved medical treatment (steroid medications) from her surgeon. And now, when the pain doctor has finally identified a procedure that can help relieve pain, the insurance company decides to claim that the employee’s back pain is not related to her injury.
How did the insurance company support its challenge? They sent the employee (who lives in south Georgia) to an “independent” medical review in Atlanta with a physician known for his pro-insurance company findings.
Fortunately the workers’ compensation judge was not persuaded by the insurance company’s weak argument. The judge found that even if the employee had some pre-existing degenerative damage to her neck or lower back, that damage was not symptomatic until the 2006 injury and that her current (as of 2013) pain was directly related to the 2006 injury. Thus the pain doctor’s treatment and proposed treatments were reasonable and would remain the financial obligation of the insurance company.
What can you glean from this case?
- First, note that this employee was a long term (7 ½ years) employee. Despite this long tenure, she eventually became a burden to her employer and its insurance company and they tried to cast her off.
- Second, the insurance company was attempting to cut off pain management treatment that was finally working for this long time employee who had undergone two different surgeries and over six years of misery. Had they been successful this employee would have ended up with a modest settlement and a greatly reduced quality of life when she ran out of money to pay out of pocket for medical care.
- Third, the insurance company sent the employee to an insurance company friendly doctor halfway across the state, and tried to convince the judge that this doctor’s conclusions were more valid than almost six years of treatment by surgeons and the pain management doctor. It certainly does not appear that the insurance company was looking for the truth – they were looking to cut off this claimant.
- Fourth, if the insurance company was successful in cutting off treatment the settlement value of this case would have gone way down. Now the insurance company is looking at 20+ years of chronic pain management costs and (assuming this case gets catastrophic designation) 20+ years of weekly wage benefit costs.
- Fifth, having been involved in cases like this, I can tell you that during the discovery phase prior to the hearing, the insurance company would have requested copies of medical records dating back years in an attempt to find evidence that the employee had a prior neck or back problem that was not disclosed to the employer at the time she was hired. No doubt she was grilled about this issue in a deposition. No doubt she was put under surveillance by a private investigator hired by the insurance company. Obviously the insurance company did not find anything and had to hang their hat on the employee’s weight gain, which, as noted, arose from authorized treatment.
I hope you can see from this case how the workers compensation system really works. Whatever the relationship this employee had with her boss, once there was a work injury claim, all those years of hard work and loyalty meant nothing.
If you are involved in an on-the-job injury case and need to have your questions answered or concerns addressed, I invite you to call me at 770-351-0801.
Attorney Jodi Ginsberg represents employees who are injured on the job and who need medical care and missed wage benefits available under Georgia's workers' compensation laws.
Latest posts by Jodi Ginsberg (see all)
- Injured Workers Suffers Due to Insurance Company Tactics - April 21, 2016
- “Independent” Medical Exams Scheduled by the Insurance Company are Rarely Legitimate - February 26, 2016
- Is a Private Investigator Following You? - December 30, 2015